Update to the Admiralty and Commercial Courts Guide

A revised edition of the Admiralty and Commercial Courts Guide was published on the Government website on 15 March 2016 and is dated March 2016. There is no in force date but we assume that the guide is in force immediately. [Update: the Ministry of Justice has now announced that the rules will be in force from Monday 21 March 2016].  We outline some of those changes in this post with our full analysis of all the changes available through the link in the conclusion.

Agreed extensions for filing the defence and reply

Where a consent order is sought by agreement for an extension of time for filing the defence for more than 28 days, or for more than the allotted 21 days for filing a reply (CPR 58.10(1)), the application must set out any relevant forthcoming hearing dates and state if the agreed extension will or may put any such hearing dates at risk. If the extension will not put any hearing dates at risk, the application should also expressly state this. This is contained in new paragraph C3.3(2) (defence) and amended para C4.4(b) (reply).

 Costs budgeting

Where costs budgeting applies (claims valued at £10 million or less) it will be considered by the court at the first case management conference (CMC) unless an earlier costs management conference has been convened (para D2.2(a)). New paragraphs D2.2(b) and D2.2(c) state that:

• the court encourages input from users as to the best ways of implementing costs budgeting
• the parties should consider the need for a costs budget to reflect the directions imposed at the CMC
• where costs budgets cannot be determined in advance of directions a separate costs management conference may be scheduled if the parties cannot agree a budget in the light of the court’s directions

 Disclosure

The Guide currently provides for the provision of disclosure schedules in complex litigation (para E2.3(b)). Para E2.3(c) is amended to state that when disclosure schedules are required, they should be produced sufficiently in advance of the CMC to enable the other parties to consider their position on the proposals contained in them. In relation to electronic disclosure (para E2.5(f)), the Guide currently states that the parties should seek directions from the court at the earliest practical date if they are unable to reach agreement on electronic disclosure of documents. This para is amended to add that the court may resolve issues concerning electronic disclosure at a CMC without a formal application being issued.

 Applications without notice

In relation to time estimates, a new para F2.7 states that accurate time estimates must be provided to include time for the hearing and reading and must allow time for all material that may properly need to be brought to the judge's attention.

For reading lists, a new para F2.8 states that reading lists must be realistic. In cases of real urgency time should be allowed in the time estimate for taking the judge to the relevant documents, rather than asking the judge to read everything in advance.

 Time estimates for applications

Applications in the Commercial Court are defined as either 'ordinary applications' or 'heavy applications'. 'Ordinary applications' are those requiring an oral hearing of half a day or less (para F5.1). The definition of 'heavy applications' in para F6.1 has been amended slightly to make it clear that heavy applications are those which require oral argument of more than half a day. As such, applications requiring oral argument of no more than half a day will remain ordinary applications, even though the overall time estimate for the hearing—which must include time for judgment and consequential matters—may be for more than half a day. A new para 10.6(c) therefore specifies that to make it clear that such an application is not a heavy application, the time estimate for an ordinary application must specify separately the time required for:

• pre-reading
• oral argument, and
• judgment and consequential matters

 Skeleton arguments for applications

An amended para F5.5 now provides that for 'ordinary applications', skeletons should not without good reason be more than 15 pages long with a minimum font size of point 11. An amended para F6.5 now provides that for 'heavy applications', skeletons should not be more than 25 pages long with a minimum font size of point 11. Where a party wishes to exceed this limit, an application on paper with reasons should be made to the court sufficiently in advance of the deadline for filing skeleton arguments and the court will give permission for a longer skeleton where a party can show a good reason why it is required.

 Further Guidance
Lexis®PSL Dispute Resolution subscribers can enjoy the full analysis of the latest changes here.

Click here for a free trial to access if you are not a PSL subscriber.